The duty of good faith in the performance of the contract was an implied condition of any contract under article 1024 of the Civil Code of Lower Canada. On January 1st 1994, however, this duty was codified at article 1375 of the Civil Code of Québec.
In parallel to this change, the traditional understanding of “contract” based on the doctrine of the autonomy of the parties has come to be challenged. In response to this critique, two theories emphasizing the importance of collaboration between contractual parties during the performance of a contract have been suggested, namely, “contractual solidarism” and “relational contract” have been suggested.
The notion of “good faith” has also recently evolved. It was originally limited to a duty of loyalty, consisting mainly in an abstention or in the duty not to harm anyone. Today, good faith also refers to a more active obligation which may require a party to act or to facilitate the performance of the contract. This general “duty to cooperate”, as it is called, has given rise to many applications, including the duty to inform or to advise.
This paper examines the extent and limits of the duty of the contracting parties to cooperate during the performance of the contract. The content and intensity of this duty are influenced by factors pertaining to the characteristics of the contract or the contracting parties. Our study of the Québec jurisprudence focused on contracts of sale, contracts of enterprise, franchise agreements and contracts in the field of computers. It suggests that the duty of the parties to cooperate is greater in relational contracts than in transactional ones. For example, the creditor may, inter alia, be bound to “help” its defaulting debtor or to renegotiate the agreement when an unforeseen event has changed the initial contractual equilibrium. However, this last issue is still highly controversial.
This duty to cooperate is not itself without limits. Firstly, it is an obligation of means, not one of result. It is also limited, even inexistent, when the debtor is bound by other duties such as a duty of “reserve” or of non-interference, when the other party is acting in bad faith or when a party unilaterally terminates a contract or does not renew it.